Smith v. Commonwealth

556 S.W.2d 670, 1977 Ky. LEXIS 524
CourtKentucky Supreme Court
DecidedSeptember 16, 1977
StatusPublished
Cited by2 cases

This text of 556 S.W.2d 670 (Smith v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Commonwealth, 556 S.W.2d 670, 1977 Ky. LEXIS 524 (Ky. 1977).

Opinions

STERNBERG, Justice.

Appellant was indicted by the Jackson County Grand Jury on a charge of murder (KRS 507.020) in the death of his wife on July 13, 1976. He was tried and convicted on October 27, 1976, and sentenced to 20 years’ imprisonment. Hence, this appeal.

It appears to be the theory of the Commonwealth that appellant and his wife went to the old Smith farm, where he killed his wife in the hopes of recovering $10,000 in insurance with which he could repurchase his ancestral farm, which had recently been sold.

Appellant contends that the trial court erred, (1) in not directing a verdict of “not guilty” at the conclusion of all the evidence; [672]*672(2) in permitting á material witness to remain in the courtroom and listen to other witnesses before himself testifying; (3) in permitting the introduction into evidence of a plaster of paris cast of an automobile tire impression and photographs of the tire tracks; (4) in permitting testimony relating to an out-of-court experiment; and (5) in permitting photographs of the deceased to be introduced into evidence. Additionally, he charges that the cumulative effect of these alleged errors deprived him of a fair trial.

By reason of the unusual circumstances surrounding this case, we deem it necessary to make an in-depth analysis of the evidence. Although the appellant was the last witness to testify, we feel that a better understanding of all of the facts will be had if we discuss first his testimony and relate the remaining evidence to his version of what happened.

Appellant delineates the fateful event in this manner. He would have us believe that on July 13, 1976, he and his wife, Mary Lee, left their trailer home at Bear Wallow, in Madison County, Kentucky, at about 7:00 p. m. to go visit Laura Howard, who lived in Clay County. Enroute to her home the brakes on his 1968 Chevrolet stationwagon gave way, and he attempted to remedy the condition by pouring motor oil in the master cylinder. After doing so, he put the can in the car and drove slowly without brakes. At about 3:00 a. m. in the morning, while going pretty fast downgrade on Leeger Fork road, a gravel road, the car hit a log about six inches in diameter and ran off the right side of the road. Appellant received a bump on his head. Mary Lee was thrown against the dashboard and out of the car, landing beside the right front door. Appellant then dragged the deceased down the road from the car, which had ignited and was burning. He rested her head on his shoulder for awhile and tried for about an hour to revive her. Mary Lee’s head was bleeding so he left her to go get assistance. Appellant first went to Vester Allen’s home. He had no telephone, but he took appellant to Orville Evans’ home, where there was a telephone, and the coroner was called.

Appellant denied that he killed his wife; denied that he was at the old Smith home place that night, therefore, he could not have built a fire, nor could his car tire have made an impression in the ground at that place, nor could his car have made an oil-drop spot there. Appellant denied that he ran his car over his wife, but he could not say whether the wheels hit her when she was thrown from the car. He said that he did not know what caused Mary Lee’s death, that she was all right immediately before the wreck and that she lived for about an hour after the wreck, but did not speak. He denied having life insurance on his wife, but said he did have a policy of liability insurance on his automobile and may have said something to Mr. and Mrs. Metcalf about having liability insurance coverage. He also denied having any knowledge of how the oil can got into a ditch among some pine brush, and he denied setting fire to the car.

Dr. James T. McClellan, a pathologist with many years of training and experience, performed an autopsy on the body of Mrs. Smith about 9:30 p. m. on the same day as the wreck and the burning of the automobile. The body had been undressed, washed and embalmed prior to its delivery to the doctor for examination. The examination revealed extensive lacerations in her scalp, hemorrhage and hematoma of the scalp, multiple fractures of the ribs, anteri-orly extensive pelvic fractures, hemorrhage behind the intestines and in the tissues of the back, hemorrhage in the lower lobe of the right lung which appeared to be due to a depressed fracture of the rib poling into the lung, fracture of the right leg bone where it is attached to the pelvis, fracture of the pelvis, fracture of the upper and lower pubic rami, and fracture of the sacrum. The doctor was of the opinion that Mary Lee’s death was due to multiple traumatic injuries to the body and that the injuries were not the kind people ordinarily receive when they are killed inside of a car crash. The doctor gave as his opinion that the injuries to Mary Lee’s body were con[673]*673sistent with injuries a person might be expected to receive if run over by an automobile.

Harry Justice, the coroner of Jackson County, testified that, pursuant to a telephone call, he arrived at the scene of the wreck at about 4:00 a. m. He said the car was in flames and he found the victim’s dead body lying about 75 to 80 feet left of the automobile in some weeds, where the appellant had dragged it. He noticed very little blood around the body.

Tommy Sloane, a state trooper, testified that he arrived at the wreck shortly after 8:00 a. m. and found the burned station-wagon off the gravel road, on the right shoulder. The car’s left rear wheel was about two feet out on the road. It had run over a log about six inches in diameter and had come to rest in a brush pile, with no structural damage.

Vester Allen testified that appellant, whom he had known all of his life, came to his home around 4:00 a. m. to use the telephone. He stated that appellant said he had wrecked his car and that his wife was dead. Allen did not have a telephone, but he took appellant to the home of Orville Evans, who did have one, and appellant telephoned for assistance. Allen also testified that appellant told him that he had worked and worked with his wife and had gotten blood all over himself. The witness said, however, that he saw no blood on the appellant. Allen stated that the appellant said he had insurance but was not sure it would pay off. Allen visited the scene of the wreck two times, once in the dark and the other time after daylight. He did not, on either occasion, see any blood around the grounds.

Howard Metcalf testified that appellant came to his home about daybreak and said he had wrecked his car and killed his wife; that appellant was worried about losing his glasses; and that appellant talked of the $10,000 worth of insurance he would get from his wife’s death and of using part of it to buy back the old Smith home and farm which he had recently sold. This witness found a quart oil can some 25 to 30 feet below the front of the car and, after several days, gave the can to Detective Ronnie Gay.

Ronnie Gay, a detective and general investigator for the Kentucky State Police, arrived at the scene of the accident about 9:30 a. m. He described the remains of the vehicle as did Tommy Sloane. He took pictures of the vehicle, both prior to and subsequent to its removal from the scene, and at about 10:00 or 10:30 a.

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Related

Mills v. Commonwealth
95 S.W.3d 838 (Kentucky Supreme Court, 2003)

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Bluebook (online)
556 S.W.2d 670, 1977 Ky. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-commonwealth-ky-1977.